Supreme Court declines to hear 'boobies' bracelet case

Mar. 10, 2014
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Students Brianna Hawk, 15, left, and Kayla Martinez, 14, display their "I (heart) Boobies!" bracelets for photographers outside the U.S. Courthouse in Philadelphia in February 2013. The Supreme Court declined to hear the case, leaving intact a lower court decision overturning a ban on the bracelets. / Matt Rourke, AP

by Greg Toppo, USATODAY

by Greg Toppo, USATODAY

Civil rights attorneys in Philadelphia plan to ask a district court judge to permanently bar a Pennsylvania school district from disciplining students who wear rubber "I (heart) Boobies!" bracelets at school.

The move comes after the U.S. Supreme Court on Monday denied the school district's request to hear an appeal of a free-speech case involving the bracelets.

The high court rejected the case from the Easton school district without comment. The Easton school board in October voted to challenge a lower federal court's decision that ruled the bracelets aren't lewd material.

The case started in 2010 when two girls, then ages 12 and 13, challenged their middle school's ban on the bracelets, which are designed to promote breast cancer awareness among young people. The students, Brianna Hawk and Kayla Martinez, said they merely hoped to foster knowledge of the disease at their school. They filed suit when they were suspended for defying the bracelet ban on Breast Cancer Awareness Day.The school district had been under a temporary injunction keeping it from disciplining students who wore the bracelets. Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania said Monday that she planned to ask a lower court to make the injunction permanent.

The school district's attorney, John Freund III, said the district is disappointed by the Supreme Court decision, but he said that several school groups supported its bid to hear the case, including the national and state school boards associations, the American Association of School Administrators and the secondary principals' association.

"Local school authorities need the ability to enforce dress codes and maintain reasonable decorum of the manner of expression in an educational environment, while respecting the legitimate rights of students to express themselves," Freund said.

The federal court's 2013 decision in the case "robs educators and school boards of the ability to strike a reasonable balance between a student's right to creative expression and school's obligation to maintain an environment focused on education and free from sexual entendre and vulgarity," he said.Principal Angela DiVietro, herself a breast cancer survivor, acted appropriately, Freund said last October, when the school board voted to ask the high court to hear the case. The bracelets represented "a trivializing" of a serious issue for her and other survivors, he said. "These kinds of cutesy appeals trivialize their experience."

"The focus of the principal was that this really suggested a prurient interest in the female breast, which is an interest that does not have to be encouraged among seventh-grade boys," Freund said.

But the 3rd U.S. Circuit Court of Appeals last August upheld a lower court's decision in favor of the girls, saying the district didn't prove the bracelets are disruptive.

At least three lawsuits have taken aim at bans of "Boobies" bracelets, distributed by the non-profit Keep A Breast Foundation of California. Kimmy McAtee, a spokeswoman for the group, said the items are "a great conversation starter" about breast health issues.Brianna and Kayla are now in high school, but the ACLU's Roper said students at their old middle school are "absolutely" wearing the I (Heart) Boobies! bracelets - "every day."